Rule of Law and Council of State 

The opening paper of the Second National Congress of Administrative Law Organised, on 10th -14th of May 1993, on the occassion of the 125th anniversary of the Council of State.

Prof. Dr. Tayfun AKGÜNER
Prof. Dr. A. Ülkü AZRAK
Prof. Dr. Pertev BİLGEN
Prof. Dr. İl Han ÖZAY
Prof. Dr. Yıldızhan YAYLA

PREFACE

Concept of Rule of Law owes its existence to parturition and evolution of Administrative Law. It may be said that history of rule of law and history of administrative law are of the same age. The fact that the primary and the most important element of the principle of rule of law being legality of the administration and existence of a judicial review over the administrative acts and actions prove the above-mentioned allegation. The reason therein is apparent: administration is a function of the state that requires intervention to public life and private lives to the utmost degree -both in positive and in negative sense; therefore it has got power that may in any way be dangerous to civil rights and liberties. This is why the Administration is bound by laws and why it is judicially controlled whether it acts within these laws. Main concern of administrative law is to deal with such issues.

First steps to achieve a state governed by rule of law, as it is known, had been to structure Council of State (Şurayı Devlet) at the Tanzimat era (1868) in order to control the Administration judicially. However, it is only after the Republic that Council of State acquires a high court identity, and then strictly scrutinizes the Administration judicially. Republican era Council of State’s, which thereafter was named as Danıştay, increasing judicial control over the acts and actions of the Administration rooted to astonishment and thus reaction of the administrators. On the other hand, there existed some objections which were often unjust of the plaintiffs and their counselors that in fact had not been able to perceive the real meaning and objectives of the administrative judicial review. Such objections, from time to time, were leading to views and allegations on the non necessity of an administrative judiciary other than common court system. Such an opinion still remains to be asserted, and it has still been somewhat effective.[1]

Appeals of the plaintiffs’ to the General Assembly of Turkey whom were not pleased with the Republican era Council of State’s decisions of the first decade, never led the administrative control in Turkey to become a impeded justice. 

On the other hand, administrative judiciary’s ever increasing power, in some sense, is parallel to the fact of emergence of a category called Government Acts that is considered to be free of judicial control by the reason to be mostly political. Such a tendency that narrows the principle of rule of law was later renounced; however, regulations on administrative judiciary of 1982, and Constitution of 1982 consist some provisions that handicap administrative judiciary, thus are against the rule of law. As to the elements of the principle of rule of law that appear in the decisions of Council of State; High Court, in decisions rendered since its getting into function in the Republican era, on one hand has been expanding its judicial control to strengthen the characteristics of being a guarantee for civil rights and liberties, and on the other hand has been trying to take public necessities and interests into consideration, and thus has been in a considerable effort to create a balance between the two scales. Such an effort is mostly observed in issues on granting recovery of damages emerging from practices in personnel regulations, activities in construction law, and acts in rendering of public services.

In the beginning, French administrative law principles, that in fact had been taken to a point as an example to advance our administrative law, was effective over the decisions of Council of State. However, Council of State, by well-perceiving its major role as a source of law, has been able to build a construction of jurisprudence that may be considered a creation of its own. It is apparent that academic doctrine has been a major reference to the High Court in such a deed.

Role of the academia is to derive the principles of administrative law, and to create a synthesis by systematizing these principles. At this point, there exists a close relationship between the academia and the judicial jurisprudence. Gaston JEZE, stress that the history of French administrative law is a history of a mutual work between Conseil d’Etat and professors of administrative law.[2] 

According to RlVERO, administrative law cannot solely be created by academia, members of the Conseil d’Etat put also an important contribution to such a construction by taking upon themselves the theoretician role in some opinions that they declare from time to time.[3] 

By the inspiration of such ideas it may be said that, academic doctrine and jurisprudence are two activities that completes each other. The only difference between the two is that the former is dogmatic whereas the later is empirical. But such a difference even is relative. Information and view exchanges between the two softens the above-mentioned difference. Information and view exchanges between the Council of State and academia on administrative law as well contributes a lot on advancement of Turkish administrative law and theory of rule of law. We hope and wish that such contributions get ever increased.



Professor Dr. A. Ülkü AZRAK

RULE OF LAW, ADMINISTRATIVE LAW AND COUNCIL OF STATE

Decisions of Council of State in regards to the principle of Rule of Law can be systematized as follows: A. Protection of Fundamental Rights and Freedoms, B. Preservation of Rule of Law through Judicial Review, C. Recovery of Damages.

A. Protection of Fundamental Rights and Freedoms:

Council of State, in the years that followed its establishment, had been in an effort that should be appreciated to create a jurisprudence for the protection of fundamental rights and freedoms in spite of the fact that the regarding regulations in the Constitution of 1924 that was then in force was cut rather short and almost no mechanism was designed to secure them. Council of State, during its first years, rendered decisions which were especially protective to fundamental rights and freedoms (listed in order of date) as Freedom of Private Enterprise (art. 70, 79), Freedom to Claim Rights (art. 59), Right of Defense before the Administration, Right to Enter Public Service (art. 92), Right to Administer (art. 70, 79), Right to Education (art. 87), equality (art. 69), legal security, and local democracy (art. 90). Among the legal reasons that motivated these judgments the precedence was taken by the fact that the Administration not to be in conformity with the requirement that liberties may only be limited by statues or by judicial decisions. Example: “It is not possible to render decisions that restrain one’s rights and freedoms by transgressing the limits of authority granted by statue by any motive.” (5. D., 29 September 1939). This view of the Council of State had become steady in time and the Court, in the decision dated 9 September 1952, repeated its judgment that civil rights may only be restrained in case of existence of an open statement of law by stating that, “The national and the local government may only dispose on freedom to work that is listed under the fundamental rights of the Turkish people in the Constitution, by authority deduced from an explicit black letter law” Council of State (Division no 12), in its decision dated 8 April 1971, once again set forth the same idea by expressing that, “The requirement that the civil rights and liberties secured in the Constitution may only be restrained if the Government is authorized by any explicit regulation is a natural consequence of the concept of Rule of Law and the principle of legality. In accordance with this role, administrative agencies can not create any restraining arrangements on the rights of people that they had not been authorized by statues.” However, the Council of State had also decided that, according to article 40 of the Constitution of 1961 that required that the State shall take precautions to assure that its private enterprises keep working in conformity with social objectives, it was in accordance with the Constitution and with law for the Administration to make a rule that, whatever the costs may be, "in order to protect infected citizens", it shall accept the least price given by factories among equal products in pharmacological means (although this had no legal basis) (D.D.K. 15 January 1971). Here we observe that the Council of State interprets the principle of legality as to include the Constitution. In other words, according to the Council of State, in some cases the Administration deduces its authority to restraint fundamental rights and freedoms directly from the Constitution.

In regards to this point we also have to express that the Council of State had established an important jurisprudence long before the Constitution of 1961 that required that the restraints that destroy the core of a fundamental right or freedom get invalid even if these were to be deduced from the law. According to the Council of State of even the 1940’s, it was illegal to establish any administrative act even if by authority deduced from the law, if it was to restraint any right or freedom to the extent of making it impossible to be exercised: “Authority that the municipalities have and had been given by statute to establish peace and security of the citizens can not be extended to void completely the right to work which is one of the civil rights and liberties.” (5th Division, 26 September 1974).

* Right of Defense:

It is another interesting point that in a case that it saw ten years after it got established, Council of State had annulled an administrative decision by deciding that it is illegal to institute a sanction by neglecting the right of defense before the Administration in spite of the fact that no such right had explicitly been existing neither in the Constitution nor in statutes (2nd Division, 6 October 1937). Council of State, in later years, had accepted the obligation to recognize the right of defense before the Administration in the context of disciplinary sanctions that are instituted for the Administration in the Constitution and in laws to be binding. There is just one case that the Council of State had decided that a penalty rendered to the opposing party by the Administration in terms of an administrative contract was improper for that the administrative agency had neglected the other party’s right of defense (Spring of Çiftehan Case, 8th Division 11 January 1966). The point that catches attention in this decision is that the Council of State here makes a reference to the general principles of law in regards to the obligation of the Administration to recognize right of defense to the persons that a sanction may be given: “It is among the general principles of law that the Administration should give a right to a person to defend oneself before applying any sanction.” The main principle here in this decision that carries an importance in administrative procedure and that may be considered to be a milestone in regards to right to defense before the Administration was also expressed in a decision of Division no. 5 dated 1969. According to this decision, in order to appoint a public officer to another location, in case of this decision to get applied as a means of sanction, it is required to determine the reason to take such a decision through an investigation by an inspector in due process (i.e. by giving a right to the person to express his/her views and objections) (5th Division, 16 June 1969, E. 68/2181, K. 69/2036). The principle mentioned above had been implicitly repeated in a later decision of the Council of State. According to this decision, it is not required to give right to a public officer that is appointed to another location to express his/her views and objections if this decision is not taken as a means of penalty (DDK. 7 October 1976, E. 65/58, K. 65/585). It is understood through this decision that it is strictly required to give a right to a public officer that is appointed to another location to express his/her views and objections if this decision is taken as a means of penalty.

A recent decision of Council of State that secures right to defense expands this right and safeguards it not only before the Administration but before the judiciary as well. “It is observed that the accusations regarded as a basis to the decision taken and evaluated as an evidence for the misfit behavior had not been notified by the Administration to the plaintiff before any administrative decision was taken; and furthermore the court rendered a decision without the notification of the above-mentioned documents to the plaintiff. Whereas the right to defense is secured by article 36/1 of the Constitution of 1982, it is safeguarded as well in international agreements that are designed to protect fundamental rights and freedoms. It is apparent that to defend against and assert counter views on something that can not be perceived and/or observed is difficult, and so much so that it is impossible...”. According to the High Court, the constitution of a conclusive judgment is a destruction of the right to defense which is one of the most important principles of rule of law in case of not giving a chance to the plaintiff to take any action against allegations against herself/himself by not being notified about the relevant documents and information, whereas this notification institutes a basic condition to a fair trial (5th Division - K. 91/1099). Council of State, whereby touches the confidential documents mentioned in article 20 of the Administrative Judicial Procedure Act declares that “It is apparent that a seal of being confidential on a document put by the Administration is not sufficient by itself for that document to be actually confidential. It is a strict requirement of rule of law for the judiciary to determine whether a specific document is confidential or not and proceed accordingly.”

* Freedom to Claim Rights:

It is a well-known fact that the Council of State’s reserved approach towards political issues in times that it was established, and the influence of the French Council of State soured the High Court to free some administrative decisions called as Acts of Government from judicial control. This practice used to be a serious restraint for the freedom to claim rights; however from 1933 to 1952 this doctrine has been employed and government’s measures for retaliation, decrees for inhabitancy, decrees on determination of nationality by being considered to be acts of government has been placed in a position of complete immunity from judicial control. To such an account earlier decisions of the Audit Court should be added as well, since then those decisions were out of jurisdiction of the Council of State. A comparison of earlier decisions of the Council of State that had restrained freedom to claim rights fundamentally in some aspects with those later ones that contains such judicial techniques to overcome legal restraints clearly shows a great progress. Actually, Council of State is the first institution in Turkey that applied the technique of Interpretation in Accordance with Constitution and thus exhibited an attitude that secures freedom to claim rights. The High Court, in its decision for the case against an administrative decision executing the norm of the Act dated 8 July 1948 and numbered 5250 which had required that “the public officers that was removed to be retired because of their own insufficiency, not to have the right to file any decision neither in administrative tribunals nor in law court” stated that, “Administrative decisions to be subject to judicial control is the most prominent characteristic of the principle of rule of law. This principle is secured by article 51 of the Constitution. Thus, it is not permissible to deny to render a decision.” (see DDK 6 June 1950)

Here, three important decisions of the Council of State has to be pointed to show that how the High Court contributed to the advancement of freedom to claim rights by insisting on leaving the path clear to apply for judicial review.[4] 

First of these groups consists decisions of Division no. 5 and named as Decisions on persons adversely affected by Act no. 1402. Two decisions that are included in here are dated 1988 and 1989 (5th Division 14 April 1988, E. 87/2417, K.88/1286; DİBK 7 December 1989, E. 88/6, K. 89/4). According to this decision, which had found interest also in other legal systems, Amendment 3 (dated 14 November 1980) of the Act on Martial Law (numbered 1402) which banned bringing any suit against any decision of the martial law commanders is against the rule of “recourse to judicial review shall be open against all decisions and acts of the administration”, provided in Article 125 of the Constitution of 1982. Moreover, the High Court states that there exists no provision that closes recourse to judicial review in Article 122 on Martial Law of the Constitution of 1982. However, since no allegation against this Act can be made because of the Provisional Article 15 of the Constitution of 1982, it gets impossible to be sheltered judicially by constitutional court review. Consequently, the High Court interpreted the related provision of the Act numbered 1402 in accordance with the Constitution, thus declared that Amendment 3 is applicable only during the martial law period, and accepted to review a decision of a martial law commander that dismissed a public servant.

Second decision related to the subject is the decision dated 30 June 1988 of Division 10 on awarding recovery for damages caused by a decision of a martial law commander that commanded burning of books that were banned, and consequently were confiscated. This case was brought to claim damages caused by a decision of a martial law commander that commanded burning of books, which previously got banned, and then were confiscated. Council of State decided that the case had to be reviewed by an administrative court since martial law commander ship exercise power to provide security in general and public order, and therefore there exists no issue concerning any military service (E. 88/1226, K. 88/1227). This decision stresses that the judicial recourse that the application was made to is an ordinary that is a civic administrative court. The third decision is a one of Division 5 which declares that a provision in Regulation on Discipline of Academics and Public Servants in Universities that provides a barrier to bring any action against some disciplinary punishments is unlawful because that it consists a prohibition which is not mentioned in the Act on Higher Education (numbered 2547). (5th Division 17 November 1989).

Council of State, on the other hand, for years has been following a path that eased the exercising of freedom to claim rights by rendering on the subject decisions. We may observe this fact through two ways of attitude: One of these is the High Court’s attitude towards statute of limitations. Council of State accepts to review a case of a plaintiff that was informed by other means before s/he was notified for a decision that s/he was adversely affected. The High Court denies the Administration which claims that the timing of the plaintiff to bring a suit against that is not yet appropriate by declaring that, article 125 of the Constitution of 1982 which provides that in suits filed against administrative acts, statute of limitations shall start from the date of written notification is a provision regulated to secure the plaintiff’s freedom to claim rights, and thus this security can not be interpreted in a way that effect the plaintiff adversely. Council of State prevented, through another decision lately, an interpretation that may be designed by using this logic to effect the plaintiff adversely. In a case brought by a plaintiff not directly effected by a decision and thus that was informed in another way than upon notification, the Administration alleged that the plaintiff was informed through the actual notification of the directly effected party. According to the Administration’s allegation sixty days of statute of limitations were over, and thus the plaintiff’s claim had to be denied. Council of State thereby stated that notification was a means to secure freedom to claim rights, and declared that for the ones that do not get notified, statute of limitation do not get applied. 

Another means of approaching of the Council of State to ease the exercising of the freedom to claim rights is to gradually handle and interpret the condition of the existence of an injury of personal interest required to grant an acceptance to review an issue in a more and more flexible way. Thus a jurisprudence that proves to fit the objective characteristic of claims of annulment gets developed. However, it should be noted that Council of State, in principle, accepts that interest should be personal, and consequently perceives the state of being only a citizen as an ability to bring suits insufficient: “although a relation of interest as an element of ability to file a suit is considered more broadly compared to suits for compensation, it is not possible to extend this attitude to everybody for them to sue any administrative decision.” (DDK., 25 January 1974, K. 74//80, DD. volume 16-17, p.163., note: This principle got reaffirmed in decision numbered 82/449 of Plenary Assembly of Judicial Divisions). However, the High Court proved that, even a broader relevance of interest may well be accepted as to the importance of the case and to the significance of the subject. This approach gets echoed most in interpretation of the concept of citizenship. Council of State, in rather old years (K. 1937/363), accepted and viewed a case brought by a resident alleging that tariffs for cabs that had been designed by the municipality were extraordinarily expensive by admitting that conditions for relevant interest gets met (see Danıştay Dergisi {Journal of Council of State}, volume 6, p. 116). This approach was repeated in much a later decision of Division 6 Council of State. According to this decision, the decision that amends a construction plan and discards a green zone ((a playground) that has been put there to secure a healthy environment which is a close concern to the city and to the interest of its residents is against the interests of a citizen, at least as someone residing there (6th Division 21 March 1988, K. 88/417, Danıştay Dergisi (Journal of Council of State), volume 72-73, p. 361).[5] 

It is observed that there has existed a more flexible approach of Division 6 in perceiving a fulfillment of the condition of personal interest in recent years especially in regards to the applications of environmental preservation and constructional planning. Actually, Division 6 not only accepted that there existed a personal relevance as a citizen of a member of the Parliament in Aliağa Thermal Power-Station Case, but as well accepted to review a case brought by the Istanbul Branch of the Union of Chambers of Turkish Engineers’ and Architect’s. The concerning suit was brought against the Ministry of Improvements and Inhabiting that had determined a function of co.-apartment residence zone by amending a town plan that required recreation zone thereby (both of the suit were brought in 1990). On the other hand Division 6 decided that owners of land, building and/or apartment have the ability as interested party to bring suits against expropriation, whereas tenants do not have such a capability (29 March 1967, K.73/1021, 27 January 1975, K. 75/440).

Council of State scrutinizes rather strictly the condition of relevant interest in cases brought by associations and unions in order to defend interests of their members. The jurisprudence thereby is as “associations are able to bring suits that interest directly their activities, whereas do not have such a capability for the private interests of their members” (11th Division 16 May 1973, K.73/1185; 6th Division 15 December 1952, K.52/2191; and 8th Division, 17 April 1969, K. 69/1547). However, Council of State accepts that there exists ability for unions to bring suits for issues that interest all of the members (DDK., 24 March 1972, K. 72/243).

It is apparent that Council of State prefers not to have the reserved approach that it had at the beginning to apply to two very important principles of rule of law. However it should be reminded that the High Court prefers to interpret the concept of relevant interest in each case per se. It may well be concluded that Council of State tend to overcome the probability of some decisions, regulating some very important issues, to get free of judicial control as a consequence of a strict scrutiny of the condition to have relevant interest.[6]

* Social Security Rights:

Council of State faced a number of suits brought in 1946 and in following years by business owners that were protesting to be included in jurisdiction of the Act enacted then and that was regulating employer-employee relations, working conditions, and so. Approach of the High Court thereby was to interpret the jurisdiction broad as possible to secure the rights and social benefits of the workers (see 6th Division, 20 May 1948; same Division 4 June 1948). Moreover, in a later decision, Council of State pointed out the blanks in social security regulations that were recent then, and advised that there was need for further legislation therein (3rd Division 19 November 1951).

* Right to Enter the Public Service, Guarantees for Public Servants:

Jurisprudence of the Council of State reflect the stable approach of the High Court to this particular issue: Rights of the ones that work get protected, it is essential for the rights and benefits of public servants to be guaranteed in order to have them perform appropriately.

First decisions of the Council of State date rather old. In a case decided in 1938 Council of State declared that in case a judicial decision exists on characterization of a public servant’s offense, it was unlawful for the Administration to have any other evaluation on the issue, therefore annulled a decision based on such grounds that dismissed the related person (DUH. 21 June 1938). Moreover, Council of State regarded an administrative decision that rejected a person that applied to be re-employed after completing his military service of which had previously caused him to leave his job, as an infringement of the guarantees that a public servant legally has (8th Division, K. 8861559).

On the other hand, according to the decision of Council of State Assembly of Unitive Jurisprudence at 1402 Case that was mentioned above, the regulation that provides a prohibition to be re-employed in the public sector for the public personnel that were dismissed by orders of martial law commanders (without taking into consideration whether there exists any related judicial decision) as it is required by article 2 of Act on Martial Law numbered 1402, may only be valid during martial law period. Dismissal of personnel by prohibiting to be ever re-employed in public service is a decision taken by procedure valid for martial law. An interpretation which permits that legal effects of such a decision to last even after the martial law to be lifted, there appears another cause for being prohibited to be ever re-employed in public service than not having the required qualifications to be a public servant or to lose such qualifications. Such an interpretation conflicts legally with some obligations of Republic of Turkey: In one hand it conflicts with article 1 subsection (1/a) of International Agreement on the Elimination of Discrimination on Basis of Work and Profession, numbered 111 which had been ratified and been approved by Act no 811 on 13 December 1966 (related article is as follows: “Discrimination is any distinction, exclusion, or restriction made on the basis of race, color, sex, religion, political view, national or social origin that causes destructive effects in equality in applying to a job or profession, or behavior therein.); on the other hand it conflicts with articles 13, 15 and 122 of the Constitution of 1982. Assembly, thus decided that, not having lost the qualifications required to be a public servant, ones that had been dismissed by martial law commanders may apply to their previous positions and get re-employed there after the martial law there gets lifted (DİBK. 7 December 1989, K.8914).

* Prohibition of unpaid compulsory work:

Another problem that we deem important to be pointed oft is the problem of extra-work fees of the public servants. This problem has not been solved for years in various sections of the Administration because of insufficient regulations therein, and this negligence of the Administration financially damaged the public employees. Council of State’s approach to the issue has progressed a bit confusing. The High Court admitted by its decision (see Danıştay Dergisi {Journal of Council of State}, volume 1, p. 190) dated 26 January 1970 that the fact that there exists no provision on extra-work in any legal document creates no basis for any decision not in conformity with the provision of the Constitution that provides prohibition of unpaid compulsory work. Therefore the Council of State stressed that the legislative gap therein should be covered by the Administration, which in fact is a Constitutional obligation. Three years later, the same Division rendered a totally opposite opinion and concluded that the fact of not paying any fee for extra-work had before getting ready the program for extra-work required in regulation on extra-work fees do not conflict with neither the Constitution nor law (5th Division, 14 November 1973, Danıştay Dergisi {Journal of Council of State}, volume 14-15, p. 258). It is not possible to say that this has been a positive progress. However it should be added that, Council of State exhibited a very explicit and positive approach in securing financial rights of public employees in a later decision on prohibition of unpaid compulsory work. It is stated in a decision rendered by Division 5 in 1984 that; “It is provided in our Constitutions that unpaid compulsory work is prohibited. It is natural to have the plaintiff paid for the period starting from the appointment and lasting until the approval of the decision, whom actually had started to work by being appointed by the Governor ...”.

* Equality:

Council of State, by the principle of treating the ones that are effected by public power equal, tries to keep the Administration away from arbitrariness. There exist interesting examples of such conduct in the High Court’s jurisprudence: 

“Both of the police officers had committed the same action and both of their records are good. It is not in accordance with the principle of equality not to give a lesser punishment to one while granting it to the other” (10th Division, K.88/242).

“While it is granted by a by-law to public servants that take final exams externally but had been appointed to another location an opportunity to take the exams at their new location, it is not in accordance with the principle of equality that is secured by Article 10 of the Constitution and Article 4 of Act numbered 1739 not to give the same opportunity to ones that work in private sector or at his/her own work” (8th Division, K.87/88).

“It is not in accordance with the principle of equality that to reject a medicine school student who demands not to have questions asked that had been previously annulled by a judicial decision” (8th Division, K.85/127).

The High Court, decided that every right and/or opportunity granted by Act dated 24 February 1984 and numbered 298l on some new regulations for construction, should be applied to all interested parties without considering whether any of those had been facilitated of such opportunity before (6th Division, K.85/1254).

On the other hand, Council of State declared that, "tax gets levied according to the basics and principles provided by laws. Thus it is not valid to claim that a tax assessment is not in accordance with the principle of equality (DDK., K. 70/291).

It is observed that, according to the Council of State, in case of the Administration shows a hesitation in interpreting a law and therefore appears an adverse affect; principle of equality should be applied. It may thus be deducted that in case a different treatment sources from the law itself, it becomes improper to apply the principle instead of the norm. In other words, in such situations legality has the priority to get applied.

On the other hand, the High Court applies the principle of equality in legitimate relations, and for the one s that are situated likewise. This may best be observed by decision number 85/259 of the 10th Division. “... It is not possible to claim any right to a factory operating without a license for 26 years in an inhabited area. The fact that other factories working in the mentioned area being granted licenses after the area being declared inhabited can not be a base for such a claim either".

* Trust and Stability (Immunity of Acquired Rights):

Council of State rendered decisions useful to define acquired rights: “In order to claim for the existence of an acquired right gained through a previous regulation, the objective norm in that regulation should have had been applied to the related person. However, there exists no decision applied to the plaintiff in accordance with the previous regulation (İDDGK, K. 85/67). Another decision reflects the same principle: “After the amended by-law gets into power, only those with a university education may be employed in private typing courses. This permission granted by the Ministry is not an indefinite acceptance for the profession, but is a work permit that needs a renewal. Thus it is not possible to accept that the plaintiff who had been teaching in a typing course as a high school graduate before the recent regulation but then resigned has an acquired right in spite of amended legal norm” (10th Division, K. 83/2658). Amended normative regulations create new legal status, however the effects of this renovation -in principle- are for the future. Otherwise, it is apparent that the whole system of legal trust and stability may get destroyed. The Council of State’s relevant approach is usually very discreet: "There is no doubt that the provision of not been sentenced by Crimes Committed against the State added to the Act 657 by Act 2670 shall be applied to those public servants that commit such crime after the law gets in effect” (5th Division, 88/2062).

Council of State accepts that amended normative regulations effect the future. But it should be added that, as it may be observed in some cases, the High Court states that the interests of the related persons projecting into future should be watched as well: “In regulating the rolls, new ones should be established, but to the best performance of the service some should be annulled as well. However in actualizing this fact the Administration should be respective to acquired rights and in regulations take such into consideration" (İDDGK. K. 86/14).

The issue that the principles of trust and stability are most considered is the withdrawal of an administrative decision. Withdrawal of an administrative decision has direct influences on acquired rights or positions. Although there are some decisions rendered by the Council of State that gives impressions as to the existence of relevant ambiguities, in general, the High Court is inclined to limit the right of withdrawal. The ambiguity therein is solely on the period for withdrawal. Other than that, conditions to create trust and stability have always been sufficiently looked for: “It is only permissible to amend a decision that had been taken, that if the service requires for or if it is provided so by law. Otherwise it is not possible to withdraw a decision that had granted personal interests to a person, since it is not in accordance with stability of administrative decision.” (5th Division, 5 November 1941, K.41/1814). Thus we may deduct that, in case of a legal necessity exists, that is if there is illegality, the decision may be withdrawn. There is no time limit mentioned in the decision. Council of State has gone too far in a later decision to claim that no time limit exists for withdrawal: “There exists a general principle of administrative law to withdraw anytime a decision that had later been determined to be illegally taken. Thus it is in accordance with law to re-regulate retirement payments that had been determined to be provided illegally.” (3rd Division, 18 Apri11967, K. 67/180). High Court, in another decision rendered that it is not illegal to withdraw a decision of appointment on the basis of illegality after 18 months (5th Division, 19 April 1962, K.62/1344).[7] 

However, the Council of State, in a previous decision rendered that "It is apparent that it is not possible to have any acquired rights through an illegal promotion, however it can not be denied that even such an action grants some interest. In case there exists later promotions that are totally legal, it gets incompatible with the principle of stability to withdraw an illegal previous one" (DTİGK., 26 September 1952, K. 52/244). The High Court decided in 1953 that, “A decision not had been granted any acquired rights may be withdrawn anytime, whereas the one that had granted so may be withdrawn in time limit to file a suit” (DGK, 9 February 1953, K. 53/32).

In another decision rendered much later, it is stated that, “In case it gets determined to be illegal, it is possible to withdraw a decision in effect from the day it had been taken. However, the rights acquired in accordance with the laws then in effect should be well protected, and withdrawal should take place within a time not destroying norms of just and equity. It is understood that the plaintiff has innocently made a mistake in his nationality. Although it was possible for the Administration to figure out this mistake easily, it is not fair to withdraw the decision after 6 years when the plaintiff was about to get graduated. Such a conduct is against the principles of administrative law and incompatible with the principles of administrative stability and just” (8th Division K. 82/1293). The High Court later rendered another decision of the same line stating that, “It is the jurisprudence of the Council of State that administrative decisions that are based on an explicit mistake may not grant acquired rights and these decisions may anytime be withdrawn. However there exists no explicit mistake to start one to work without completing the appointment procedure, and there exists no fault of the plaintiff therein", and annulled the withdrawal (5th Division K.884/38842). Interesting point that is common in both decisions is the use of the concepts of explicit mistake of the Administration and fault of the related party (fraud, intentionally being facilitated through illegal decision) to overcome time limits in withdrawal.

In a more recent decision that reflect the effort to limit withdrawal by time, Council of State declares that, “It is out of the principle of stability in Administration to keep even the decisions that are illegally taken if a particular time is passed over. Thus it is not possible for the Administration to withdraw anytime a decision if unless there exists a fraud on behalf of the interested." (10th Division, 85/10).

Consequently, this may be deducted out of these decisions: There is a jurisprudence administrative decisions that are based on explicit mistakes grant no acquired rights to the related parties, however an existence of a considerable time over the decision makes it impossible to withdraw the decision if unless there exists a fraud on behalf of the interested. An explicit mistake on behalf of the interested that can easily be figured out by the administration is even tolerated. Council of State, later, supported this jurisprudence and moreover made it clear by a decision on unification stating that, “It is accepted in domestic doctrine and in others that, in case of decisions determined later to be taken illegally grant acquired rights, they may only be withdrawn within time limits to file an annulment suit. By the end of this period the decision becomes permanent for the Administration as well. However, this principle is valid only for ones with good will. In case of fraud on behalf of the interested the decision may be withdrawn anytime...” (İBK., K. 87/2).

As it is understood this decision that unified relevant jurisprudence accepts the principle as “withdrawal of a decision taken illegally within time limits to file an annulment suit. This explicit statement has to be taken into consideration in every conflict that arises in such conditions.

It should be added that the principle of withdrawal of a decision taken illegally within time limits to file an annulment suit is only valid for positions that the interested get adversely affected. Otherwise the decision should always be withdrawn. The consultative division of the Council of State states as well that the adverse affect created by a decision illegally taken should be corrected by a withdrawal in effect from the beginning: “Ones that have the prohibition decision for working in public service annulled should have the benefits that had been deprived." (1st Division 87/378)

* Autonomy of Local Governments / Local Democracy:

Council of State has always been in one hand a judicial institution that protects the jurisdiction of local governments, and in the other hand that renders decisions on objections to the loss of status of their elected organs. The priority in this context is to be able to determine the characteristic of the legal tie between the local governments and their administrative trusteeships. Council of State has frequently had the opportunity to deal with this issue. In a 1949 decision, the High Court rendered that the control of the administrative trusteeships over the decisions of the local governments should legally be based and exercised in the limits designed by law. According to the High Court, any control that do not accord with these requisitions are invalid: “The authority of the Ministry of Interior Affairs to control the decisions of a municipality which is an autonomous institution should be within the limits of. The authority to control therein should be over affairs determined by law. Any statement or decision other than these issues should be considered to be suggestions” (5th Division, 16 June 1949, K. 49/1848). Council of State’s discreet approach to local government autonomy is clearly seen in the jurisprudence in relevance with the characteristics of administrative trusteeship. This is once more observed in a much later decision: “Administrative trusteeship, an institution of public law, gives the central government a limited power to control some of the decisions of the municipalities to secure the interests of the citizens therein. Thus the approval of the administrative trusteeship is not an element of the local government’s decision. The decision is of a local government with autonomy, administrative trusteeship is only an approval that is not a part of that disposition” (9th Division, 27 October 1981, K.81/4814).

Council of State has been discreet in applying the provision of the Constitution (art. 127) requiring the procedures dealing with objections to the loss of elected organs of local governments of their status as an organ to be resolved by the judiciary. A very typical example of such conduct is seen in a decision dated 1987. Council of State declared that, the dismissal of the mayor that was the subject of the case was illegal by the reasons that such investigations to take long time and therefore to appear the possibility not to serve the public proper, and moreover the probability to destroy the autonomy of the local government (8th Division, 87/376). Although the priority is given to a technical reason as to serve the public proper, considering with other decisions based on local government autonomy and its guarantees secured by the Constitution, it may be concluded that the bottom line is to secure the elected ones to serve properly for the time they had been elected for.

It should on the other hand be pointed out that the High Court has not yet showed anything to declare that it left behind some of the hesitations seen at the beginning on especially the legal characteristic of the required control (for example, the Assembly of Judicial Division had not made the concept of “judicial control” clear although the chance was given in the decision dated 5 March 1971 and numbered 71/214). Council of State Division number 8 rejected an application by a decision dated 25 March 1987 and numbered 86/402 stating that the power given by amended article 33/a of the Village Act that provides “village aldermanship and membership of the Assembly of Elderly of the village revokes by either the City Administrative Assembly or Town Administrative Assembly” has not been passed to courts neither by the Act numbered 2526 nor any other law, and such power still remains in jurisdiction of City Administrative Assemblies or in Town Administrative Assemblies. (compare Constitutional Court, 24 September 1987, E. 87/4, K.87/20, Anayasa Mahkemesi Kararları Dergisi (Journal of Decisions of Constitutional Court, number 23 p.344 and on).

B. Preservation of Rule of Law through Judicial Review:

* Efficient (broad and deep) Judicial Control:

-Power of Discretion and Appropriateness:

If freedom to claim rights and principle of recourse to judicial review to be open are not supported by efficient judicial control they remain far from being sufficient. Council of State, diagnosing this fact rather early, has been rendering interesting decisions since late 1930’s. Most typical of such decisions are on power of discretion of the Administration. Council of State, in a decision dated 1938 scrutinized a decision on its element, “the objective”. As to the case history, the Administration had based its decision in regards to re-locating a public servant on “necessity seen”, and claimed that it was using its power of discretion that is free from judicial control. Council of State declared that it is not possible to admit that power of discretion has such an absolute character that can prevent the judiciary to control whether it had been used in accordance with the aim and objective of the related legal norm, as mentioned above the High Court scrutinized the decision on its element, "the objective". (DHH 5 September 1938). This related jurisprudence became a permanent one and got expressed in many decisions. An example: a decision of Assembly of Unification of Jurisprudence dated 9 July 1966 on annulment of a decision of the Administration to have a public servant retired (“It is amongst the principles of Administrative Law that the power of discretion of the Administration not to be absolute and unlimited but to be limited to public interest and to the necessities of public service”).

Council of State made the concept of “appropriateness” clear by an approach that takes efficient administrative control into account. The High Court stressed in a decision of 1986 that it is not possible for the administrative judge to take place of the Administration by a control of appropriateness, but shall face a “appropriateness zone” after scrutinizing exclusively every objective, moreover while working on the element of "objective" even the subjective element (5th Division, K. 86/1084). Other Divisions of Council of State, as well, interpret the concept of appropriateness similarly: “In order to mention about control of appropriateness of the Administration, there should be either a decision on operational difficulties that the Administration can not evaluate objectively, or there should be an intervention to the legal option that the Administration has. The Administration may determine whether the attorney’s allegedly committed acts are criminal or may search for 17 evidences to discover whether the person mentioned have any relevance with such acts” (6th Division, K.87/371). Likewise, “Allegations as to a real estate that had been subjected to expropriation is more than sufficient for a circus, and therefor there exists a necessity for a discovery and an expertise to get rejected by the judiciary by a statement as it is in the zone of controlling appropriateness is illegal” (6th Division, K. 84/1054).

- Scrutinizing the Consideration / Burden of Proof:

Council of State has always been exercising a strict scrutiny on the consideration element of administrative decisions. A relevant important issue at this point for the Administration is to prove that the consideration stated for a particular decision actually exists. Council of State enlightened this issue appearing as burden of proof as, “Plaintiff shows the affidavits of the village alderman, the driver that had been driving him to the village and the teacher taken before the notary public as evidences to prove that the allegations of the Administration that he had not been going to school for 10 days are invalid. The Administration shows no counter evidence, thus the decision has no valid legal basis” (5th Division, K. 85/2532). In another decision we observe that the issue of burden of proof is clearly solved: “As the administrative decision that states that those particular residences are social housing is valid, it is not possible to ask one such proof” (9th Division, K.88/1667).

The High Court demands from the Administration, especially in taking decisions on professional issues of public servants, to base them on actual information and documents that are reliable and valid: “The evidence to show what the danger is not to keep the public servant that had been dismissed on duty is still not have been received. Since no evidence is shown, the decision should be annulled.” (5th Division, K. 88/1903). Other decisions that the Administration is asked to serve the objective basis of the decision taken by factual evidence are on inquiry of security: “The inquiry of security report that is based on to reject the application to be promoted to a full professorship includes no sufficient factual evidence, thus the administrative decision should be annulled” (5th Division, K. 86/226). A similar one: “The information gathered through an inquiry of security should be subjected to judicial I review for it is the consideration element of the decision. Taking as well the Penal Court decision into consideration, it is understood that the consideration stated is not legally valid.” (5th Division, K. 86/334). On the other hand, the High Court evaluated a judicial decision that had a negative effect on the concerned employment as an adverse evidence: “It is not against public interest not to employ one that is determined judicially to have taken action in terrorist movements, although he may have passed the written examination and been successful in the orals” (2nd Division, K. 81/318).

Council of State showed a similar conduct as to issues on records of public servants: “A candidate may not be dismissed unless the alleged negative conducts to be proven by factual evidence!” (5th Division, K. 83/6932).

“It is the duty of an Administration to preserve the statements that were being submitted. It is not possible to attribute any fault to the plaintiff, since there exists negligence on behalf of the Administration." (6th Division -decision of approval)

Such jurisprudence of the Council of State on consideration element and burden of proof is balanced by the principles of inquiry by judicial initiative. Actually there exist some decisions that the Administration itself may not defend sufficiently, especially as to the legal grounds to take such decision. For example, inquiry by judicial initiative on tax disputes fulfills as well the duty to protect financial interests of public. This issue shall be covered later. However, the balancing function of the administrative judiciary does not appear only on financial interests. Jurisprudence on some issues is as well been developed to counter balance the general principle.

“In scrutinizing the administrative decision the Court should not be limited only to the consideration stated by the Administration but as well search for any other consideration” (10th Division, 87/2181).

Thus it is apparent that the Turkish High Administrative Court is equal to similar institutions of countries that Administrative Law most evolved as in France.

Principle of Inquiry Upon Judicial Initiative:

This principle especially concerns the objectivity of the suit to annul. According to this principle the administrative judge should not get contended only with information, documents or evidence submitted by the parties. Council of State has been applying the “Principle of Inquiry Upon Judicial Initiative”. An example: “The fact that the defendant may not be defending himself/herself against the plaintiff’s allegations is not a reason to render a decision as to the demand of the plaintiff. The court should be on necessary inquiry" (7th Division, 84/2544). A similar one: “In case the interested parties and/or the third parties are delayed to serve the documents demanded by the Court, in accordance with the Principle of Inquiry Upon Judicial Initiative, the Court may demand directly from the authorities that have the power to control those documents, to do the necessary inquiry and submit a report thereby. The Court should have asked the authorized tax service to control the records of the merchant whom the plaintiff claims that he bought the animals from in order to figure out whether or not there happened a sale (4th Division, K.84/2373).

“It is not judicious for the Court to annul the order of payment infringing the principle of inquiry upon judicial initiative by stating that no defense had been submitted by the Administration." (7th Division, 84/2544).

“The fact that the defendant may not be defending himself/herself against the plaintiff’s allegations is not a reason to render a decision as to the demand of the plaintiff. The court should be on necessary inquiry" (9th Division, K. 86/3043).

These decisions show the duty of the tax courts to protect the public financially, that is consequently to protect their interest.

Excluding these decisions, as it is observed in the case of element of consideration and burden of proof, the principle that Council of State is devoted to is to have the Administration to take decisions based, on actual considerations, or at least to prove such a consideration before the judiciary.

* Application of the Judicial Decisions:

Provisions of the Constitution and of the Administrative Procedure Act have been supporting judicial jurisprudence, and such jurisprudence has been evolving in accordance to the spirit of these norms.

“It is stressed in article 2 of the Constitution that Republic of Turkey is governed by rule of law. It is also mentioned in a subsection of article 138 that, “legislative and executive organs and the Administration shall comply with court decisions. These organs and the Administration may never amend or delay to apply these decisions. Under such a principle, the Administration has no way than to apply this decision that is considered to be applicable in factual and legal means immediately" (5th Division K. 91/154).

According to the Council of State, proper application of judicial decisions is a must for to be governed by rule of law. Jurisprudence of the High Court defines the concept in several means.

(1) Decision to annul should actually be applied:

“Decisions of annulment should abolish the decision that had been demanded to be nullified, and its consequences starting from the day that it was taken. Thus previous legal status becomes to be the present one. Similar effect is for the stays of execution.” (8th Division 82/1196).

Council of State that has steadily been accepting that the decisions of annulment and stays of execution are retroactive has rather a discreet and totally firm approach for the application of such. 

“It is inevitable for decisions to be effected by having a decision that they had been based on annulled” (5th Division K. 91/154 -previously mentioned). Thus the previous legal status becomes the present one, unless there exists any factual or legal impossibility.

The High Court does not accept false applications.

“It is not possible to accept that the judicial decision is applied in case it gets falsely applied just for a few days. Plaintiff that had been re-employed was dismissed by the end of his third day. It is not judicious to reject to see a case without inquiring the actual facts. In case that the Administration do not show valid reasons that shall as well be proved, it is apparent that such a conduct shall be deemed as a fault on behalf of the Administration” (5th Division, 87/1520).

(2) Decision to annul should fully be applied:

“According to the principles of Administrative Law, decisions of annulment abolish the decision that had been demanded to be nullified and its consequences starting from the day that it was taken. Thus previous legal status becomes to be the present one. By-law that was against law was annulled by a decision of Council of State. Thus in regulating a new one, the judicial decision should be taken into consideration. In order to deem that the new regulation as fulfilling to the decision, it should get into power by 1 January 1985. A new by-law that is put into effect by 21 July 1986, creates an amending and delaying effect. Such a conduct conflicts with the Constitution (art. 138), and with Administrative Procedure Act (art. 28/1)" (5th Division, 87/246)

Council of State demands the stays of execution that control the legality of administrative decisions to be applied precisely in a similar way.

“In the case concerning a decision that had abolished an inscription, case history shows that the plaintiff goes to serve his military service before he receives a stay of execution. It is apparent that it is not possible for the plaintiff to be facilitated from such an opportunity, so what has to be done is to preserve the acquired right of the concerned; and then be given the plaintiff another chance to take an examination as a consequence of the stay of execution." (8th Division, K. 82/1196).

As it may be observed, Council of State expects the Administration to actualize everything to have the decision applied. Otherwise, it happens to be the financial, legal, and moreover penal liability of the Administration and its servants. 

“Decisions rendered by the judiciary are the best tools to secure the Administration to be in accordance with law. It is a requirement of rule of law for the Administration to have the judicial decisions applied properly. Legal interest for delay of % 30 should be paid for days after the 60th day, since the decisions of tax courts legally should be applied in 60 days. (9th Division, K. 87/3466).

“...Administration should accept judicial decisions, and should take a decision or exercise an action to apply the judicial decision. This requirement is also provided by rule of law. Facing this principle provided in article 2 of the Constitution, Administration has no option than to apply the judicial decisions “fully” and “immediately”. It is not possible to deduct that the term “at most in 60 days” renders the Administration a power of discretion to choose whether to apply it “immediately” or to delay it. ... Decision should get applied as immediately as possible. It is a tradition in our legal system to apply the decisions in a “reasonable” time. A reasonable time is a period sufficient for the Administration to create a suitable environment to apply the decision. This period is at most 60 days.” (5th Division, K. 87/1740).

C. Recovery of Damages:

Regular suits filed to recover damages have increasingly been effective, besides forcing the executives of the Administration to apply the judicial decisions by claiming compensation. Sources of liability are increased, and there has been improvement as to the conditions to bring suits.

Jurisprudential law is not much common in Turkey, but it may be claimed that the broadest area that such law is applied is administrative compensation suits that are named “suit for full judgment”. Principle of liability in the Constitution of 1982 (art. 125/ last paragraph) is a repetition of the provision in the Constitution of 1961 (art. 114/ last paragraph). It is stated in the reason of article 114, last paragraph that issues on liabilities are thought to be solved by doctrine and by jurisprudence. Especially the rapid developments actualized by 1961 period have been convenient to meet the ends.

* Increase and clarification in liabilities:

Developments in contemporary state governed by rule of law have been reflected to the decisions of the Turkish administrative judiciary. There is no doubt that condensing social relations, and increasing technical power of administrative instrument that is developing and getting more and more complex through technology, and thus its rising standard are among the main reasons of the level that is reached in our day.

(1) Clarification of the concept of service-connected faults

Council of State has ever been accepting that there exists liability for service-connected faults. However, developments that have been on for the last 50 years clarified the concept more and more, and broadened as well its scope.

There appears a form of service-connected fault in cases that the administration acts too late to regulate.

“It is apparent that he defendant Administration has the authority to determine the characteristics and scope of the course books to be taught in classes. However in this case, the defendant Administration did not exercise its power on time, but asked to have a course book prepared by the plaintiff without determining any characteristics nor scope for such. It is only after the completion of the book that the Administration decides not to have it taught in courses, and consequently not to publish it. There appears a service-connected fault of the Administration that had not fulfilled its duty on-time.” (10th Division, 88/906).

“It is a service-connected fault to unreasonably delay a decision of retirement long after the concerned gets dismissed” (10th Division, 84/41).

Administration should keep the service running by sufficient, educated, and qualified personnel. There should be a high standard for the service. “Administration should keep the personnel and machinery ever ready to deliver the public service as a part of its duty in a proper way. Full care and attention should be paid in giving the service to function properly. Moreover, the Administration should educate its personnel that shall run the service sufficiently to fit best to the necessities of it.” (10th Division, K.83/1596).

“... Administration has to provide a health service in accordance with medical norms given by qualified personnel.” (10th Division, K.85/26).

Continuous control is as well amongst the duties of the Administration. There is no excuse not to exercise this duty. Especially in public places. 

“In public places, municipalities have to remove any nuisance that may prevent trespass or that may cause any accident; and have to take precautions to prevent fire. In other words such places should always be kept under control. It is the duty of the municipality to create a secure and conforming environment. In the light of such duties the Municipality herein should pay for economic loss, physical pain and mental distress suffered through damages of wrongful death in fire at Aksaray Underground Passage” (8th Division, K.83/2756). Defendant municipality therein counter-claimed that the fire was on through an extra charge of electricity in one of the shops, however the High Court insisted on its decision.

Council of State states that, “mental distress determined by a judicial decision should be paid to the plaintiff. It is not a reason not to exercise such duty even if a factual impossibility prevents the Administration. (6th Division, K.85/880). The liability here is once more based on service-connected fault.

The High Court deems administrative decisions and actions that negatively effect the, trust for government, that creates an assault or battery that destroys the trust for just and for courts a heavy service-connected fault. (6th Division, K. 87/540 a decision of approval). Parallel to the developing technology, responsibilities of the Administration get more and more:

Municipality should have had rejected to habituate anybody in a building far too near to a high voltage line. Anybody that had been injured even if by his or her action (in regulating the antenna) should recover his or her damages from the municipality that have committed a service-connected fault.” (8th Division). As it may be observed that in spite of a counter fault Administration is deemed to be liable.

Jurisprudence herein carries as well a characteristic of balancing in its benefits for public order. That is, if someone happens to be able to compensate by other means his/her damages sourced by the Administration, Administration gets free of recovering. (5th Division, K. 88/461).

In another decision of Council of State it is declared that, “Article 50 of Act numbered 6785 requires a decision of the Municipal Executive Assembly to pull down a severely ruined building. However, it is not possible to claim that the municipality which had pulled down a building that was severely ruined to be collapsing without providing the decision had committed a service-connected fault.” (6th Division, 88/46). This example shows that existence of an actual danger prevents a conduct to be a service-connected fault. However in the particular case, court rendered a compensation since there exists an expertise to prove the building to be compact.

(2) Strict Liability – Principle of Equality in Burdens – Fairness – Just: 

“Neither the principle of equality nor norm of equity permit the damage resulted in delivering public service to be carried by one or a few. According to the principle of strict liability, even if the Administration has no service-connected faults, should pay for the damages given in delivering public service. According to Act number 406, Administration has the authority to cut off the tree branches that touch the wires on telephone lines and consequently cause damage. However, this is no excuse not to pay for the damage given by cutting of the branches of trees (10th Division K. 83/2657). This compensation is one required by an Act. However it has been successful to keep the Administration liable.

“It is among the general principles of law, and it is required by principles of fairness and equity that to compensate damages suffered privately in the course of deliverance of public service without considering the existence of a service-connected fault. The only requisite is to have a proper cause and effect bound. Thus, according to the principle of strict liability, death from blows taken in a boxing match should be compensated.” (10th Division, 85/1065).

* Adoption of procedural conveniences in claims to recovery and broadening of the term to be entitled to claim damages

Council of State adopted some procedural conveniences by taking the increasing importance of full judgment suits into consideration. As an example a 5th Division decision for a compensation to recover late-feasance may be presented:

“Administration applied the judicial decision on 18 November 1983 whereas it had been notified on 9 March 1983. There exists no relevant provision in Administrative Procedure Act. Thus provisions of Act 1050 should be applied. According to Act 1050, interested parties should apply to the Administration, and claim for their damages in five years. In case that these demands get rejected the application to the administrative judiciary shall be in time of ordinary filing. (5th Division, K. 87/1740).

The principle exercised in suits to compensate has always been to state the damage claimed in the petition. However, it is not always possible to know what the damage is. Thus Council of State made a positive change in such legal requirement. 

“... As long as the decision that causes damage stays in effect, it is apparent that damage shall be suffered. Thus, it should be accepted that in cases that such obscurity exists the Administrative Procedure Act shall be interpreted in broad means (Assembly of Unitive Jurisprudence, 83/10).

Council of State broadened also the concept of “entitled person”.

A case is mentioned above on a wrongful death from blows taken in a boxing match. It is admitted in this decision that the stepmother may recover post-majority support as well (10th Division, 85/1065).

There is another interesting relevant example. “Plaintiff and the decedent were not officially married; but have been living as husband and wife for a long time having three children. It is understood that the care of those children was taken by the decedent; thus she is entitled to recover post-majority support (8th Division, 84/1618).

In estimating the amount for condensation, benefits of the interested parties get priority protection. Especially, a social security benefit that shall be received in future is not deducted from the compensation amount that shall be paid by the Administration. Council of State reached as well a convenient decision on this issue. It is not possible to deduct social security benefits from the compensation amount that shall be paid, since this is not acquired through the service-connected fault but a product of the decedent (10th Division 84/663).

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[1] In fact, such views and efforts has never been powerful enough to lead to a serious attempt to do away with administrative judiciary in Turkey, but it may be said that has played a major role in construction of a system especially by regulations of 1982 on administrative judiciary that in which it has gotten to be somewhat similar to common judiciary. In this context, see, Lutfi DURAN, Idari Yargı Adlileşti (Administrative Jurisdiction Has Become Common) İdare Hukuku ve İlimleri Dergisi (Journal of Administrative Law and Sciences), Year: 3, no. 1-3, 1982, p. 53.



[2] see, JEZE, "Collaboration du Conseil d’Etat et la doctrine dans l’élaboration du droit adınİnİsıratİf français", Livre jubilaire du Conseil d’Etat, 1952, p. 347.

[3] see, J. RIVER O, "Jurisprudence et doctrine dans l’élaboration du droit administratif’ EDCE, p. 27.

[4] It should also be noted that, Council of State Division 5, had denied a case concerning an action taken in accordance with the Act on Persons that Shall be Dismissed by Getting Employed at the Headquarters of the Organization They Work For, number 6435 - dated 5 July 1954. The High Court stated thereby that, “it is not possible to annul an action that dismisses someone by employing at the headquarters of the organization s/he works for since there exists a provision (article 3 of the Act on Persons that Shall be Dismissed by Getting Employed at the Headquarters of the Organization They Work For) that banned to bring any suit at any tribunal against such actions.” It should be added as well that article 3 of the Act on Persons that Shall be Dismissed by Getting Employed at the Headquarters of the Organization They Work For was later annulled by the Constitutional Court by decision dated 14 November 1962 which declared that article 3 was not in accordance with article 114 on administrative judiciary of the Constitution of 1961.

[5] However Division 6 previously had denied to review a case brought against the Municipality of İstanbul to annul the master plan of roads that connect to the Bosphorous Bridge. The suit was brought by one as being a citizen, but it was denied by getting decided that there existed no relevance of interest (31 March 1970, K. 70/835). This may lead us to conclude that the decision dated 21 March 1988 indicates a regarding progress.

[6] However, although there was a similar situation for the Bosphorous Bridge Case, Council of State interpreted the concert of relavent interest in a limited sense and barred the issue to be reviewed.

[7] 5th Division found withdrawal legal; however, rendered that the effects of the action that had been taken should be preserved, for the opposite is incompatible with the principles of just and equity. Professor Dr. Lutfi DURAN, on the other hand, points out the confliction within the decision, and states that the action should be annulled totally (including the withdrawal as well). See İdare Hukuku Içtihad Kroniği (Administritive Law Chronicle of Jurisprudence, İHFM. (Istanbul Law School Journal), v. XVIII, no. 2, pp 237 and on.